Citation Nr: 1033217
Decision Date: 09/03/10 Archive Date: 09/13/10
DOCKET NO. 06-25 157 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem,
North Carolina
THE ISSUES
1. Entitlement to service connection for bilateral shoulder
degenerative joint disease.
2. Entitlement to service connection for right elbow degenerative
joint disease.
3. Entitlement to service connection for bilateral wrist/hand
degenerative joint disease.
4. Entitlement to service connection for bilateral hip degenerative
joint disease.
5. Entitlement to service connection for bilateral ankle/foot/toe
degenerative joint disease.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
W.T. Snyder, Counsel
INTRODUCTION
The Veteran served on active duty from April 1978 to April 1998.
This appeal to the Board of Veterans' Appeals (Board) arose from a
June 2005 rating decision by the Regional Office (RO) of the
Department of Veterans Affairs (VA) in Winston-Salem, North Carolina,
that denied the benefits sought on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the Veteran if further
action is required.
REMAND
The Board notes the examinations afforded the Veteran addressed only
her back, knees, and left elbow, which are already service-connected.
She was not afforded an examination for the claims on appeal. VA is
obliged to provide an examination when the record contains competent
evidence that: 1) the claimant has a current disability or signs and
symptoms of a current disability; 2) the record indicates that the
disability or signs and symptoms of disability may be associated with
active service; and, 3) the record does not contain sufficient
information to make a decision on the claim. 38 U.S.C.A. § 5103A(d).
(Emphasis added). The threshold for the duty to get an examination
is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Board notes further that the claims file contains extensive
medical evidence of complaints of shoulder and hip pain, as well as
diagnoses of mild degenerative changes of her hands and feet, and
right foot extensor tenderness. A June 2006 report of a joints
workup at Ft. Bragg, NC, noted degenerative joint disease in all
major joints, and noted the Veteran's pain in her hip, shoulders, and
elbows. He noted mild degenerative changes of the hands, feet, and
ankles, was shown on an October 2005 x-ray. The examiner opined the
Veteran's symptoms were possibly related to her work during active
service as an aircraft mechanic. The Board finds that an opinion is
needed to facilitate appellate review.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should obtain the names and
addresses of all medical care providers who treated
the Veteran for degenerative joint disease of the
Veteran's major joints, to include, her hands,
ankles, and feet. After securing the necessary
release, the AMC/RO should obtain any private
and/or VA medical records not already associated
with the claims file. All efforts to obtain
identified records should be documented, and the
Veteran must be informed of any records sought but
not obtained.
2. After the above is complete, the AMC/RO shall
arrange an examination(s) by a physician examiner.
All indicated diagnostic tests should be conducted.
If diagnoses of degenerative joint disease, or
other disorder, of any major joint, to include the
hands, ankles, and feet, are rendered, request the
examiner(s) to opine as to whether it is at least
as likely as not that any diagnosed degenerative
joint disease of a major joint, to include the
hands, ankles, or feet, is related to the Veteran's
active service. Any opinion should be fully
explained and the rationale provided.
In preparing the requested opinions, the examining
physician must note the following:
? "It is due to" means 100 percent
assurance of relationship.
? "It is at least as likely as not" means
50 percent or more.
? "It is not at least as likely as not"
THE ISSUES
1. Entitlement to service connection for bilateral shoulder
degenerative joint disease.
2. Entitlement to service connection for right elbow degenerative
joint disease.
3. Entitlement to service connection for bilateral wrist/hand
degenerative joint disease.
4. Entitlement to service connection for bilateral hip degenerative
joint disease.
5. Entitlement to service connection for bilateral ankle/foot/toe
degenerative joint disease.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
W.T. Snyder, Counsel
INTRODUCTION
The Veteran served on active duty from April 1978 to April 1998.
This appeal to the Board of Veterans' Appeals (Board) arose from a
June 2005 rating decision by the Regional Office (RO) of the
Department of Veterans Affairs (VA) in Winston-Salem, North Carolina,
that denied the benefits sought on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the Veteran if further
action is required.
REMAND
The Board notes the examinations afforded the Veteran addressed only
her back, knees, and left elbow, which are already service-connected.
She was not afforded an examination for the claims on appeal. VA is
obliged to provide an examination when the record contains competent
evidence that: 1) the claimant has a current disability or signs and
symptoms of a current disability; 2) the record indicates that the
disability or signs and symptoms of disability may be associated with
active service; and, 3) the record does not contain sufficient
information to make a decision on the claim. 38 U.S.C.A. § 5103A(d).
(Emphasis added). The threshold for the duty to get an examination
is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Board notes further that the claims file contains extensive
medical evidence of complaints of shoulder and hip pain, as well as
diagnoses of mild degenerative changes of her hands and feet, and
right foot extensor tenderness. A June 2006 report of a joints
workup at Ft. Bragg, NC, noted degenerative joint disease in all
major joints, and noted the Veteran's pain in her hip, shoulders, and
elbows. He noted mild degenerative changes of the hands, feet, and
ankles, was shown on an October 2005 x-ray. The examiner opined the
Veteran's symptoms were possibly related to her work during active
service as an aircraft mechanic. The Board finds that an opinion is
needed to facilitate appellate review.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should obtain the names and
addresses of all medical care providers who treated
the Veteran for degenerative joint disease of the
Veteran's major joints, to include, her hands,
ankles, and feet. After securing the necessary
release, the AMC/RO should obtain any private
and/or VA medical records not already associated
with the claims file. All efforts to obtain
identified records should be documented, and the
Veteran must be informed of any records sought but
not obtained.
2. After the above is complete, the AMC/RO shall
arrange an examination(s) by a physician examiner.
All indicated diagnostic tests should be conducted.
If diagnoses of degenerative joint disease, or
other disorder, of any major joint, to include the
hands, ankles, and feet, are rendered, request the
examiner(s) to opine as to whether it is at least
as likely as not that any diagnosed degenerative
joint disease of a major joint, to include the
hands, ankles, or feet, is related to the Veteran's
active service. Any opinion should be fully
explained and the rationale provided.
In preparing the requested opinions, the examining
physician must note the following:
? "It is due to" means 100 percent
assurance of relationship.
? "It is at least as likely as not" means
50 percent or more.
? "It is not at least as likely as not"
means less than a 50 percent chance.
? "It is not due to" means 100 percent
assurance of non relationship.
The examiner is further advised that the term "at
least as likely as not" means that the weight of
medical evidence both for and against a conclusion
is so evenly divided that it is as medically sound
to find in favor of that conclusion as it is to
find against it.
If the examiner is unable to provide an opinion,
that fact must be stated and the reasons why an
opinion cannot be provided explained. That is,
the examining physician must specifically explain
why the causation of any diagnosed degenerative
joint disease is unknowable? The examiner is
asked to attach a copy of his/her CV to the
report.
3. Advise the Veteran that it is her
responsibility to report for the VA examination,
to cooperate in the development of the claim, and
that the consequences for failure to report for a
VA examination without good cause include denial
of the claim. 38 C.F.R. §§ 3.158, 3.655. In the
event she does not report for any ordered
examination, documentation must be obtained which
shows that notice scheduling the examination was
sent to the last known address prior to the date
of the examination. It should also be indicated
whether any notice that was sent was returned as
undeliverable.
4. Thereafter, the AMC/RO must review the claims
file and ensure that the foregoing development
actions, as well as any other development that may
be in order, has been conducted and completed in
full. The AMC/RO should review the examination
report to ensure that it is in complete compliance
with the directives of this REMAND. If the report
is deficient in any manner, the AMC/RO must
implement corrective procedures.
5. Then review the Veteran's claims de novo in
light of the additional evidence obtained.
If either claim is not granted to her
satisfaction, send her and her representative a
supplemental statement of the case and give them
an opportunity to respond to it before returning
the file to the Board for further appellate
consideration.
Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case. The Veteran need take no action unless otherwise notified. VA
will notify her if further action is required on her part. She has
the right to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12 Vet. App.
369 (1999).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans' Appeals
or by the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be handled in
an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2009).
_________________________________________________
Cheryl L. Mason
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of Appeals
for Veterans Claims. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. § 20.1100(b) (2009).